Married couples - individual wills need a joint approach
Following the UK’s referendum in June on its membership of the EU, many European nationals are concerned with their future immigration status in the UK once Brexit takes effect. Equally, some are considering the status of their children and whether they are able to register them for British citizenship or apply for a British passport. In this blog, we outline the law relating to this, which may help you determine the status of children born to European nationals living in the UK.
A child born to a European national, who has lived or is living in the UK, may have an entitlement to register as a British citizen or may even be born British and can apply for a British passport directly.
However, being born in the UK does not necessarily mean the child is a British citizen and there are various factors that should be considered to establish if the child is British, such as the child’s date of birth and the European parents’ status in the UK at the time of the child’s birth. However, if one of the child’s parents is British (e.g. a European citizen gives birth to a child in the UK and the father is a British citizen), then there is no need to establish the European parent’s status in the UK, as the child would acquire British citizenship through the child’s British parent.
Here are some of the key issues you need to consider:
If you are a European national and your child was born on or after 30 April 2006, your child is born British if you have acquired permanent residence in the UK prior to your child’s birth. Therefore, before you can establish whether your child is British, you need to establish if you, as the European national parent, have acquired permanent residence.
A European national will automatically acquire permanent residence in the UK after they have resided in the UK exercising Treaty rights for five continuous years. A European national is exercising their Treaty rights in the UK if they are economically active in the UK either as a worker and/or a self-employed person. You can also be exercising Treaty rights as a student and/or a self-sufficient person, but you must have held comprehensive sickness insurance in the UK during this time. In addition, there is also an absence requirement to be met which will determine your continuous residence in the UK.
However, prior to 30 April 2006, the following rules applied:
If it can be established that the child is born British in accordance with the criteria outlined above, then the child can apply for a British passport directly. Since the supporting documentation required is different depending on the date of the child’s birth, it is important to establish how your child is born British before submitting an application.
If your child is not born British, you may subsequently register your child as British after you have acquired permanent residence in the UK.
As part of the application, evidence will need to be provided to confirm the date the European national parent has acquired permanent residence in the UK and that the child was born in the UK before this date. You only need to show that at least one of the child’s parents held permanent residence status in the UK and not both parents.
There are key documents that will need to be provided to show the parent has lived in the UK exercising their Treaty rights continuously for five years as a European national or as a family member of a European national, as well as meeting the absence requirement. It is important to note that a child cannot be registered as British if the child is born British already, so it is essential to establish the immigration status of either parent at the time of the child’s birth before determining which application should be made for the child.
Should you have any questions about the status of children born to European nationals, who are living in the UK, or any other British citizenship or permanent residence query, please contact Jessica Jim or a member of our immigration team.
To find out more about the processes for European nationals obtaining permanent residence in the UK, please see our blogs, factsheet and webinars below. You may also be interested in our blogs and other materials relating to wider issues on Brexit, which can be found on our Brexit hub.
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